White Lanterns [2005] QBCCMCmr 131 (4 March 2005)

Last Updated: 5 July 2005

REFERENCE: 0573-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21388
Name of Scheme:	White Lanterns
Address of Scheme:	147 Kingston Road, WOODRIDGE QLD 4114

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

the body corporate

I hereby order that the application for orders that Ricardo Romero, the owner of lot 25 (respondent) immediately remove the improvements to common property which form an enclosure to the car parking space for his lot is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0573-2004

"White Lanterns" CTS 21388

Application

White Lanterns Community Titles Scheme (White Lanterns) is a 24 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by the body corporate (applicant) seeking orders against Ricardo Romero, the owner of lot 25 (respondent). Each lot has an area of exclusive use for the purposes of car parking for the lot. The exclusive use area for lot 25 is adjacent to the exclusive use areas for lots 14, 15, 23, and 24. Photographs indicate that these five car parks are covered by a single carport. However, the section of the carport that covers the exclusive use area for lot 25 has been clad with some form of metal sheeting to form an enclosed garage.

The body corporate seeks an order that the respondent be required to remove the metal sheeting and restore the area to having just the carport structure. Alternatively, the body corporate seeks an order that entitles the body corporate to remove the enclosure and recover the reasonable costs of carrying out the work from the respondent.

Submissions

The body corporate’s main submissions were to the effect that:

• The respondent, and the prior owners of the lot, failed to gain body corporate approval to enclose the section of the carport associated with lot 25;
• The local council has not approved the enclosure of the carport and has threatened to fine the body corporate if the body corporate does not obtain a development permit for the enclosed carport; and
• Even though the enclosure of the carport was done by someone who owned the lot before the respondent bought it, it was the respondent’s responsibility to ascertain whether the enclosure was authorised and it is the respondent’s responsibility to remove the unauthorised enclosure.

The respondent’s main submissions were to the effect that:

• The previous owner who enclosed the carport has stated that it was enclosed in approximately September 1996 and was approved at the time by the chairperson and the committee;
• As there has been acquiescence by the body corporate to the enclosure of the car port for a period in excess of seven years the structure does not contravene the by-laws or the legislation; and
• The respondent has approached the local council to seek council approval for the structure but was informed that only the body corporate could make application for the permit because the structure is on common property.

Other owners have also provided submissions. All submissions are available for the parties to inspect upon request and it is unnecessary for me to summarise these submissions here. However, the main concern expressed in submissions from other owners was that allowing the respondent’s enclosure to stay would set a precedent that would mean the body corporate would have to allow any owner to enclose their carport. Owners express concern that this would ultimately detract from the amenity of the scheme.

The respondent has countered this submission by stating that owners have a right to vote against any proposal by another owner to enclose their carport and there is no harm in allowing the existing structure to remain.

Decision

Authorisation required from the body corporate

An owner of a lot requires the authorisation of the body corporate before making any improvement to the common property (Standard Module, 114). This authorisation must be by special resolution unless the improvement is minor, does not detract from the appearance of any lot, and is not likely to promote a breach of occupier duties (Standard Module, 114(2)). Under the legislation previously governing the scheme, approval for improvements to the common property would have needed to be by resolution without dissent (Building Units and Group Titles Act 1980, 37A).

No proper authorisation obtained

The previous owner who enclosed the carport has stated that it was approved at the time by the chairperson and the committee. However, committee approval would have been insufficient to comprise a formal approval under the legislation outlined above so it seems clear that there was never any proper authorisation for the structure by the body corporate.

Deemed authorisation

A particular issue in dispute is whether the body corporate is entitled to require the respondent to remove the structure over seven years after it was constructed and given that the respondent had bought the lot and received the benefit of the structure with no knowledge that the previous owners had failed to get proper approvals for the structure. The body corporate submits that the respondent should have checked the body corporate and council records to ensure proper approvals had been given. The respondent says that the body corporate kept inadequate records so it was not clear whether or not approval had been given.

The body corporate is required to act reasonably in carrying out its functions and an adjudicator is required to make an order that is just and equitable to resolve a dispute (Act 94, 276). After considering the circumstances, it appears unreasonable and inequitable for the body corporate to require the respondent to remove the carport enclosure at his own cost when owners have known of the carport enclosure for a number of years and acquiesced to its presence. Rather, the lapsing of years places the body corporate in a position as though it is deemed to have approved the structure.

Possible revocation of authorisation

Even if the body corporate has or is deemed to have given its authorisation, this does not mean that the body corporate is never able to revoke its authorisation to make the improvements (Standard Module, 58(2)). Owners may wish to consider a special resolution in general meeting proposing to revoke the authorisation and to require the respondent to remove the structure. But the body corporate must act reasonably and I would consider it would be unreasonable for the body corporate to require removal unless it agreed on payment of fair compensation to the respondent. The appropriate compensation could be determined by agreement with the respondent or by evidence from a valuer.

No precedent set if authorisation not revoked

If owners would prefer that the structure remain in its present condition rather than the body corporate pay compensation for its removal then they can exercise their vote accordingly. A concern expressed by owners is, however, that allowing the respondent to retain the enclosed garage as an improvement to common property sets a precedent under which the body corporate will need to allow any owner to enclose their carport. The body corporate must consider any application by an owner to enclose their carport on its individual merits but the enclosure of one garage over seven years ago does not seem to set a strong precedent to require the body corporate to approve any subsequent applications to enclose carports. Particularly if it was made clear to owners and prospective purchasers that the respondent’s enclosure is a special case that was allowed to remain because no objection was made for over seven years, it would be difficult for any owner applying to enclose their own carport to argue that other owners are somehow restricted in their ability to consider the new enclosure application on its individual merits.

Local council issues

The structure does, of course, have to satisfy any applicable local council requirements in addition to satisfying requirements imposed by legislation governing the operations of the body corporate.

I have no jurisdiction to consider local council issues. However, if owners do not vote to require removal of the structure then owners may consider it prudent that the body corporate apply for local council approval to avoid the body corporate being subject to a fine. It may be the case that the body corporate can obtain approval simply by lodging an application for approval with the council. It would not seem unreasonable for the body corporate to require the respondent to pay any fees for approval and provide assistance such as copies of drawings or plans. If the body corporate uses its best endeavours to obtain approval but the council requires modifications or removal then it would not be unreasonable at that time for the body corporate to require the respondent to perform the modifications or removal. However, at this present time the body corporate is not justified in seeking to require the respondent to remove the enclosure given that owners have allowed the structure to remain for over seven years.

Order

For these reasons, the application is dismissed. It remains for owners to consider whether they wish to require removal of the structure with appropriate compensation to the respondent or, alternatively, allow the structure to remain and seek local council approval.